v
FRED GWALI & JOHN MORRISON
High Court of Solomon Islands
Before: Frank Kabui J
Criminal Case No. 21 of 1997 &
1 of 1998
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Hearing: 8th
February 1999
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Sentence: 12th
February 1999
Jean Gordon for the Accuseds
DPP for the Crown
SENTENCE
(Frank Kabui J):
This case concerns you, namely, Fred Gwali and John Morrison. You are from
Koaa Village, West Kwara�ae in the Malaita
Province. You were charged by the
Director of Public Prosecutions for the stealing of postal packets in
Honiara on 10th
February, 1995. You both pleaded guilty before me and I
convicted you accordingly on your own pleas. You are now before me
for
sentence in the usual way.
The admitted facts are these.
You Fred Gwali was a driver for the General Post Office in 1995 being
employed by the then
Ministry of Posts & Communications. On or about the
10th of February, 1995, you Fred Gwali and John Morrison were drinking
beer
in front of the General Post Office Compound after work. You were doing so
until dark. You then went into the mail
room of the General Post Office and
broke open mail bags No. 16 and 28 which were to be sent to Kira Kira and
Gizo the
next day. You removed eleven (11) registered letters containing
money from mail bag No. 16 which was to be sent to Kira Kira.
You also
removed six (6) registered letters from mail bag No. 28 which was to be sent
to Gizo. You were subsequently
arrested and charged by the Police. Each of
you was interviewed by the Police and admitted the offence committed.
According
to Fred Gwali's caution statement recorded on 8th March, 1995 by
Detective Sergeant Mamu, No. 591 the amount of money taken
was about $1,000.
All this money went towards the purchase of beer. The stolen money has never
been recovered.
The maximum penalty fo stealing of postal packets under the law is imprisonmentnment for ten (10) years.
Section 266 (b) of
the Penal Code states:
"Any
person rson who steals from a mail bag, post office, post office letter box,
officer of the post office, or mail, any postal
packet in course of
transmission by post; is guilty of a felony, and shall be liable to
imprisonment for ten years."
So, this is a serious offence.
It is nll matter. The duty of this this Court is to punish you for this.
However, what
punishment should be given and how heavy it is to be would
depend upon the facts of your case and seriousness of the offence
you
committed. You Fred Gwali being an inside man, as it were, knew where the
mail bags were kept and their contents.
You used to carry mail bags as a
driver so you knew about them. You knew registered mail would contain money
and must
be protected by those who were trusted to handle, transport and
deliver them safely at all times. Although you were not a postal
officer at
the time you committed the offence, you, as a mail driver, were expected by
your employer to observe all the
safety rules about the handling of mail
generally one of which must be that you were not supposed to steal mail in
the
General Post Office. It is like a Bank driver stealing money from the
Bank that employs him although he is not a bank officer
as such. The money
you stole belong to other citizens of Solomon Islands. You knew it was not
your property. Being drunk
is not an excuse. It is an easy and convenient
excuse to make. Do not drink alcohol if doing so would cause you to steal
another person's property. You, John Morrison also participated in the
stealing of the two mail bags. You must have obviously
known that to gain
access into the room where the two mail bags were kept and to remove their
contents together with
Fred Gwali was wrong. Again, being drunk is not an
excuse. Fortunately, there is no evidence to show that you were the prime
mover in the commission of the offence. You simply went along with what Fred
Gwali was saying and doing. Both of you
benefited from the proceeds of the
offence you both committed.
The stealing of p packets
is not a prevalent offence in Solomon Islandslands. I believe however it happened
before in
this country. One such case is R v Aldrin Maepaine (Criminal
Case No. 6 of 1982 unreported). In that case, the accused was a junior
and young postal officer who stole money in registered mail over a long
period
of time. The accused pleaded guilty to three (3) counts of stealing
postal packets but asked the court to take into account
nine (9) other
similar offences. The accused also co - operated with the Police. The High
Court sentenced the accused
to eighteen (18) months imprisonment on each
count to run concurrently. The High Court also imposed a fine of $50.00 on
each count to be paid within one (1) month in default of which the accused
would go to prison for six months.
In your case, Fred Gwali, you
pleaded guilty and cooperated with the Policeolice. I have also taken into
account everything
that is said in your favour by your lawyer. That is to
say, I have taken into account the fact that you are married with three
children (3) with the fourth one being expected. I have also taken into
account the fact that your mother is diabetic
and the fact that you are
paying school fees for members of your family. I have further noted that you
are sorry for
what you did. I place no weight on the submission by your
lawyer that you are now a changed person - now a Christian as there
is no
independent character evidence by your. pastor to confirm that submission.
If however, you are a changed man then
it is good for you. Your lawyer also
urged me to consider the fact that your trial had been hanging over head for
more
than three (3) years through no fault of yours. This is not disputed by
the Director of Public Prosecutions. The fact that
you are now employed as a
driver for Hot Bread Kitchen earning a salary for yourself and your family
is bound to be jeopardised
if you went to prison. I note that it is unfair
and most inconvenient for you to have waited for your trial for over three
(3) years without knowing the date of your trial and your fate. As the
famous saying goes "justice delayed is justice
denied".
In your case, Jorrison,
you also pleaded guilty and co - operated weld well with the Police. I have also
taken into account
everything said in your favour by your lawyer. I note
that you are sorry for what you did and ask me for leniency. Both you
and
Fred Gwali are of good characters.
For my part, this is not an
easy case to de In my view, the offence boce both of you committed is a
serious offence indeed.
You stole money sent by post to other persons in
Kira Kira and Gizo. Those persons had lost their money. You caused them
unhappiness and anger. You were selfish and inconsiderate. You were bad
citizens. You were thieves. You ought to be punished
by the law. That is
their expectation of the Courts in this country. I am sure you will well
appreciate this.
R v Dalo [1987] SILR 43 at 44,
C.J. Ward, said,
"It is perfectly clear
that the sentence is correct in law and hend he was right to consider including a
deterrent
element in cases where violence has erupted from a land dispute.
On that basis I would have dismissed the appeal.
Howevee offence
occurred on 2nd February 1984 and was firstfirst before the court on 3rd February
1987 - three years later.
Counsel for the respondent could give no reason
for this delay.
In this case, the
appellant has, since the offence, committed no other offence and has
obtained a good job. The sentence
of imprisonment will lose him that job.
Although the learned
magistrate refers to the fact that the appellant has been out of trouble
since February 1984 and
was clearly aware of delay, I feel he may not have
made due allowance for the hardship caused by the delay.
i>I may well be failing to
give credit tdit to the magistrate, for his sentencing judgment was well written
and showed a
sensible and careful approach to the case.
>However, in perhaps an
over - abundabundance of caution, I shall allow the appeal and reduce the
sentence to one of twelve
months imprisonment.�
In case, the sentence was
reduced from eighteen (18) months to twelve (12) months. It w It was a case of
unlawful wounding
quite unlike this case. However, the point here as I have
said is that long delay in prosecuting criminal cases may have the
effect of
reducing a custodial sentence imposed by the Court. Having considered the
facts of your case, the nature of
the offence you committed and the penalty
prescribed therefore and all that is said in your favour by your lawyers, I
am of the view that a custodial sentence is inevitable in this case. I
therefore sentence you Fred Gwali to eighteen months
imprisonment and you
John Morrison to 9 months imprisonment. Although I am tempted to order
payment of compensation under
section 27 of the Penal Code, I would not be
doing so as the facts presented by the Director of Public Prosecutions do
not disclose the exact amount
of money stolen and the owners of the stolen
money.
However, this is not the end of
the matter. Your lawyers in their submissions urged me to consider
suspending any custodial
sentence that I may impose on you in this case.
They both referred me to the case of R v John Mark Tau & Others
(Criminal Case No. 58 of 1993) where Palmer, J. suspended the sentences
His Lordship imposed in that case. I have read the hand written Judgment on
sentence by Palmer, J. in that case. One significant factor is that there
were character witnesses in that case quite unlike
this case. However, my
view is that you both are first offenders. That fact is demonstrated by co -
operating with the
Police and pleading guilty to the offence you committed.
You now regret what you did. Also, you have not committed any offence
for
the last four (4) years since the commission of that offence. This shows
that you must have learnt from your mistake
and wish to live a straight
life. It would seem to me that the offence you committed was an isolated
incident of misbehaviour
on your part very much influenced by the
consumption of alcohol. I will give you a chance to enjoy your freedom from
detention by suspending the sentence of eighteen (18) months imprisonment in
your case, John Gwali for two years. Likewise,
the sentence of nine (9)
months imprisonment in your case John Morrison is also suspended but for
twelve (12) months.
This suspension of sentence takes effect today. I am
empowered to do this under section 44 of the Penal Code.
Section 44(6) of the Penal Code
has been complied with.
Dated this 12th
day of Febru999
F. O. Kabui
Judge
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